R v Elie ZEILAA

COUNSEL : M Cunneen SC - Crown P Winch - Offender

SOLICITORS : S Kavanagh - Crown S O'Connor - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

REMARKS ON SENTENCE 1 HIS HONOUR: The offender was charged that on 11 February 2008 he murdered his wife. He was committed for trial to this Court. However shortly thereafter a question arose as to his fitness to be tried. On 20 March 2009, after hearing evidence from a number of psychiatrists, I determined that he was fit to plead to an indictment charging him with murder although he might not have been fit to stand trial on that charge. As a result the offender was immediately re-arraigned on that date and pleaded guilty to manslaughter. The Crown accepted that plea in full discharge of the indictment. The parties agree that the manslaughter offence is based upon the offender's responsibility for the killing being substantially reduced by his mental disorder. 2 There was a statement of facts tendered. On 11 February 2008 an argument arose between the offender and the deceased, during which the deceased indicated that she was thinking of leaving him. The offender went to his bedroom and took up a hunting knife from a bedside drawer. He returned to the kitchen where he repeatedly stabbed the deceased. There were 19 wounds inflicted upon her. 3 The offender, while still holding the knife, walked outside his house and yelled, "I killed her, I killed her, I killed the bitch, call the police, call the police". A neighbour dialled triple 0. When police arrived the offender was still standing outside with the knife. He put down the knife when told to do so. He said, "I think she's dead. I want her dead. I wanted to kill her." Later he told police, "I don't (sic) want to do it, she made me. I want to die." He was arrested and taken to a police station. During the journey he said, "I don't (sic) want to do it. She made me do it. I swear to God I didn't want to do it. I pray to my God but I had to do it, she made me. Please don't tell my daughter it will kill her too. We have trouble for long time. She hit me. I say please don't do it. She always out. She have (sic) lots of sisters. Always out. I have nobody. I want to die". 4 The offender and his wife were married when she was aged 17 and he 23. In the later part of their marriage there were frequent arguments. Although the offender told Dr Nielssen, a psychiatrist who prepared a report on the issue of fitness, that he had never used violence against her, there are accounts from other persons in statements tendered before me indicating that he was both verbally and physically abusive to his wife. He appears to have been very domineering toward her and attempted to control her life to his benefit. 5 The offender is 73 years of age. He was born in Lebanon and came to Australia in 1969. He was a shoemaker. He has no criminal record. None of these subjective matters is of any particular weight in this case because of the undisputed evidence in relation to the offender's mental state at the time of the offence, his current mental state and its prognosis. 6 The offender is suffering from dementia, probably of the Alzheimer's type. That is the condition that was operative at the time of the stabbing, that is the condition that gave rise to a question as to his fitness to be tried and that is the condition that will dictate what happens to him as a result of the sentence imposed upon him. It seems that the dementia had been progressing for about a year before the stabbing. 7 Dr Allnutt was of the opinion that, at the time of the killing of his wife, the offender was probably manifesting signs and symptoms of dementia of "some degree of severity". The result was that there was a reduced capacity for the offender to inhibit his impulses. When he was seen by Dr McMahon in February of this year, the offender was in the "early to mid part of Stage 1 of the condition". After his arrest he was being treated by Dr Reutens a psychiatrist with Justice Health who specialises in such mental disorders. She was of the opinion that the offender was suffering from "mild cognitive impairment that would result in some defect in his ability to reason". He was in January of this year suffering problems with his memory, judgment and attention. It was these difficulties that gave rise to the issue of his fitness to be tried. 8 As to his prognosis, Dr McMahon stated:

Prognostically it is likely that his cognitive functioning will continue a gradual decline if left untreated for a further 18 months……… He will then enter Stage II of dementia which can endure from two to 10 years which includes severe memory impairment, apathy and irritability, the onset of psychotic features, abnormal electroencephalograthy, and loss of over learned skills such as self-care routines. Stage III will then ensue with severe intellectual decline, the onset of sub-cortical features such as limb rigidity, loss of continence and loss of language. This stage usually endures from eight to 12 years after initial onset of the condition until death. 9 Dr Reutens stated:

This (the dementia) is an irreversible process of worsening cognition occurring over years…… in the long term there will be a continual decline in cognitive abilities and he will eventually require assistance with activities of daily living such as dressing and showering. Ultimately, full nursing care is usually required. [The offender] will require ongoing medical monitoring to follow the rate of this decline, to diagnose any complications and to assess his functional capabilities. While the rate of decline is influenced by individual factors and the type of dementia, the duration of the illness is usually about four to 10 years. 10 The appropriate sentence to impose upon the offender therefore must take into account, not only the shortened life expectancy that he has as a result of his dementia but also the deterioration in his ability to relate to the world around him, to care and provide for his own welfare and the loss of any enjoyment of life he might have hoped for on release. 11 As with all persons who commit offences of violence as a result of a mental disorder, questions as to the safety of the community arise, especially where, as here, there is no treatment for the disorder. Dr Allnutt believed that there would be an increased risk of violence as the offender's mental health deteriorates. He stated:

Current and internal factors that are active that are associated with increased risk of violence would include the following: he lacks insight into the fact that he suffers the dementia; he continues to manifest a mental condition that affects judgement and in this sense he could find erroneous justification in other setting to act in an aggressive manner; symptoms of dementia persist; with frontal lobe damage and dementia he is at increased risk of impulsivity; dementia is a mental illness that is unlikely to respond to treatment and thus his functioning will deteriorate and with this his potential risk regression and dependency will increase. 12 However it is unlikely that the offender will have the ability to carry out significant acts of violence, either because his physical condition will deteriorate or because of the absence of any personal relationship that is likely to bring him into conflict with any person. It is clear that the killing of his wife was a symptom of his domineering relationship toward her and an example of his history of the use or threat of violence against her to make her compliant. It erupted into actual violence of a most serious kind on this occasion because his ability to control his behaviour or exercise judgment was substantially impaired by reason of his mental condition. He is unlikely to be any threat to the public when eventually released because of the continued and unremitting deterioration of his physical and mental capacities as a result of his mental disorder. 13 Although there are persons in the community who are genuinely in fear of him as a result of the killing of his wife, there is no realistic possibility that he will be in a position, or have the desire, to harm any other person when he can eventually be released. He is therefore unlikely to reoffend in any serious way. But his release will initially be subject to him being able to live a law-abiding life in the community. Any realistic fear of violent behaviour arising because of his mental disorder will no doubt be a very significant factor to be taken into account when his release to parole is being considered. 14 This was a serious offence, as is any manslaughter arising from an act intended to kill or inflict serious harm on the victim. It was a frenzied stabbing in the context of a history of abusive conduct towards the victim. Normally such criminal conduct would require a salutary sentence to punish the offender for taking the life of another human being by violence involving the use of a weapon. However, having regard to the present mental condition of the offender and the prognosis of a continued decline in his mental state the denunciation of that conduct should be substantially moderated. The situation is that there is little prospect of the offender having any real enjoyment of life after his release from custody. The difficulty for those who have to consider his release to parole will be his placement in the community. He has no longer any home and no family support. He will be completely reliant upon community services and it will most likely be the case that he will be released into some type of nursing or palliative care. 15 Normally the consideration of general deterrence would feature strongly in assessing any sentence to be imposed for such an offence, it being a domestic killing in the circumstances of a history of threatened, if not actual, violence against a female spouse. But by reason of the offender's mental state, both at the time of the killing and at the present time, and in light of the prognosis of continued decline until death, it is not appropriate to make an example of him for the purpose of deterring others from similar conduct. 16 I must take into account the offender's age. It is trite that old age is not a licence to commit crime and generally speaking a person who commits an offence at an advanced age cannot rely upon his age to mitigate the sentence for that offence. But this case is different because the mental disorder, from which the offender suffers and which impaired his responsibility for the offence, is a result of his age. 17 The offender pleaded guilty to manslaughter when first arraigned. The arraignment was deferred because of genuine questions raised about the offender's fitness to plead. It was not until that issue could be determined, through evidence given at a hearing, that any question of the nature of his plea could realistically be considered. However, the offender has always accepted responsibility for killing his wife, although his explanations may have differed from time to time. One of the difficulties for his legal representatives initially was being confident that the offender understood that, because he killed his wife, it did not mean that he was necessarily guilty of murder. It was not until after evidence was given in the fitness hearing that it became apparent to those defending him that the offender could reliably receive advice and give instructions as to how he should plead to the indictment. As soon as the offender was found fit, he pleaded guilty to manslaughter. 18 A plea of guilty at arraignment will not normally result in the maximum discount for the utilitarian value of the plea: R v Borkowski [2009] NSWCCA 102. The Court of Criminal Appeal has expressed the view that a delay in the plea will usually impact upon its utilitarian value whatever the reason for the delay: Tazelaar v R [2009] NSWCCA 119. But the amount to be awarded by way of discount is discretionary and it is accepted that there can be unusual situations where fairness may impact upon the determination of the appropriate discount. The Crown conceded that this was an exceptional case where the discount should be at the maximum level. This seems to me to be a case where there has been a significant utilitarian benefit from the plea that was first foreshadowed in September of last year. I am satisfied that the plea came at the first reasonable opportunity. This would not itself justify the maximum discount where there had been significant delay before the plea has been forthcoming: R v Dib [2003] NSWCCA 117. 19 In this case there was never a real question about the offender pleading guilty to some offence in relation to the death of his wife, provided that he was capable of making that plea. Early in the proceedings the defence identified that the only real issue was whether the defence of substantial impairment could succeed. There was no question that the offender's responsibility was impaired. The only issue would have been the extent of that impairment and a trial on that matter, if necessary, would have been very brief. The only reason why that issue could not proceed or why the plea could not be made and accepted by the Crown was the question of the offender's fitness. In these unusual and exceptional circumstances, and despite the delay of the plea until more than 12 month's after the offence, I am prepared, to give the offender the benefit of a discount of 25 per cent. 20 It is also an unusual case when one comes to consider special circumstances. Much of the significance of the offender's mental condition goes to a determination of the overall term of imprisonment. I should indicate that the appropriate punishment has been significantly reduced because of the offender's mental condition and its impact upon his life expectancy and the hope of some worthwhile life after his release. The court should avoid double counting by refraining from using those matters again to find special circumstances unless for some reason they indicate that the non-parole period should be reduced further. The non-parole period is automatically reduced by a reduction in the overall sentence. It is difficult to justify a finding of special circumstances on the basis of a need for a longer period on parole. Nothing will be achieved by parole supervision because of the effect of the offender's mental condition and further deterioration while in custody. 21 However, although it is impossible to know the rate of his decline, the longer he is in gaol the less able will he be to cope with the world, to care for himself or to have any worthwhile life in the community. It seems to me that deterioration will probably be more accelerated in a prison environment notwithstanding the efforts of Dr Reutens and her nurse to treat and assist him. I believe that there are special circumstances in this situation so that he may obtain what benefit there is in his being released earlier than later during his sentence. As I have already indicated, there is less need for the minimum period of custody to reflect denunciation and general deterrence than would normally be the case for an offence of this nature. 22 Those that mourn the loss of the deceased in this matter should understand that this is a very unusual case and the sentence that will be imposed on the offender cannot in any way reflect the loss of that life to them. It is of little comfort to them and I would understand that they would think that the sentence imposed does not compensate for the loss of that life generally and the loss of the deceased to them. They must try to understand that sentencing is a difficult task when it is so serious as involving the taking of a human life. It is not simply a case of attempting to value the loss of the deceased's life and to punish the offender accordingly as if this were a civil proceeding. This is a matter of some complexity, not only because this is an offence of manslaughter, but also because of the unusual situation of the offender, his mental difficulties and the prognosis he has for the remainder of his life which has been diminished by his mental disorder. This is a very peculiar sentence imposed in circumstances of a very unusual case. 23 Madam Crown, I have tried to stress in my reasons that the sentence is a very unusual one for manslaughter in these circumstances. I was much assisted by both your stance and counsel for the accused during the course of the hearing in what was a difficult sentencing exercise. 24 The offender is sentenced to a term of imprisonment made up of a non-parole period of 2 years 6 months and a balance of term of 2 years 4 months. The sentence is to commence on 11 February 2008 and the non-parole period expires on 10 August 2010. **********

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